Wednesday, February 18, 2015

Appeal Waivers Are Still a Thing

Today, in United States v. Garcia-Ramirez, the Tenth Circuit reminded us that it still intends to enforce appeal waivers, even though it recently skirted the issue in a different case. That case, United States v. Black, involved an issue of statutory interpretation, the end game centering on whether the defendant had to register as a sex offender under SORNA. That issue was a difficult one to square with the appeal waiver entered into by the parties because it turned on whether the district court had the authority to impose sex offender registration, an issue that might raise jurisdictional issues, and jurisdictional issues are almost universally excluded from the sledgehammer that is an appeal waiver. So the Tenth skirted the appeal waiver issue in Black and affirmed on the merits. The key word in that sentence is affirmed. That is why we put it in bold type.
In Garcia-Ramirez, the defendant tried to skirt an appeal waiver in light of Black, but the Court noted that it had no intent to skirt appeal waivers, then vacate sentences. Before it would vacate a sentence, it would have to reach the merits of the appeal-waiver issue. This makes sense, considering that the government "bargained for" the appeal waiver (ok, we all know how it works; the government includes an appeal waiver, and we eat it; but courts think it is part of the "bargain," so we'll play along). So, bottom line is that the Tenth has not announced some new rule that appeal waivers will be ignored on a regular basis.
The decision also reminds us of the three-part Hahn test used to enforce appeal waivers. The case is cited all the time, so a reminder of its presence is likely unnecessary, but there you go. Needless to say, you should know this decision. It is a popular one. The appeal-waiver loophole is the always murky "miscarriage of justice." In Garcia-Ramirez, however, no argument was made on the point (likely because there was no argument to be made on the point).
Appeal dismissed. The end.